The new penalties in the Crimes (Aviation) Act will now fall within
four tiers. The arrangement of criminal penalties under the
Act into these tiers will bring greater coherency and consistency
to the Act. The severity of the penalty in each tier corresponds
with the type of the offence that would fall within each
tier. They are summarised as follows.

Tier one - maximum penalty of life
imprisonment.
Offences in this tier would be those that involve hijacking an
aircraft in flight (subsections 13(1) and (2)) as well as those
offences that carry a very serious aggravating element of
“intent to cause death or recklessness as to the safety of
human life” (subsections 18 and 20).

Tier two - maximum penalty of 20 years
imprisonment .
The offences in this tier all carry a serious aggravating element
of interference with the operation or safety of an aircraft or
airport. These offences typically involve the creation of
significant danger

to whole groups of people. Examples of offences that fall
within this tier include taking or exercising control of an
aircraft by force, trick or false pretences (section 16(3)), the
intentional prejudicing of the safe operation of an aircraft
(section 19), and the assault of, threat to or intimidation of a
crew member onboard interfering with or impeding their ability to
perform function or duties (section 21).

Tier three - maximum penalty of 14 years
imprisonment .
Offences contained within this tier deal with actions involving or
actions against aircraft and aviation environments. Many
offences have the aggravating element of danger or harm to an
individual but unlike the more serious tier one and two offences,
none require proof of recklessness as to the safety of human life
or proof of danger to whole groups of people. Examples of
offences in this tier include taking or exercising control of an
aircraft while people are on board (section 16(2)); destruction of
an aircraft (section 17); and endangering the safety of a
Commonwealth aerodrome or air navigation facility or those within
its limits (section 27(1)).

Tier four - maximum penalty of ten years
imprisonment .
This tier includes general “catch-all” offences which
do not have the more serious, aggravating elements of the higher
penalty offences. Examples of offences in this tier are
taking control of an aircraft (section 16(1)); making a threat to
damage an aircraft and harm those onboard (section 24(1)); and
making a threat to damage a Commonwealth aerodrome or air
navigation facility or harming persons within (section
28(1)).

Offences under the Crimes (Aviation) Act are, by their nature, all
very serious offences, so that even tier three and four offences
carry very significant penalties. The determination of the
proposed penalty for each offence has been undertaken in line with
the considerations spelt out in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement
Powers ,
which is available on the Attorney-General’s Department
website .

Section 4B of the Crimes Act 1914 provides that pecuniary
penalties may be imposed where a person is convicted of an offence
against a Commonwealth law. Where no amount is specified, the
Crimes Act allows for a default maximum fine. For each
penalty tier of the Crimes (Aviation) Act, the default maximum fine
that could be imposed on an individual is as follows:

Tier one (life imprisonment) - $220,000

Tier two (20 years imprisonment) -$132,000

Tier three (14 years imprisonment) - $92,400

Tier four (10 years imprisonment) - $66,000

These amounts reflect the current value of a penalty unit under
section 4AA of the Crimes Act, which is $110. If the offender
is a body corporate, the maximum fine that may be applied is up to
five times the amount specified above.

The Schedule 1 amendments also propose three new offences to be
inserted into the Act. They are:

assaulting a crew member (section 20A)

reckless endangerment of the safety of an aircraft likely to
endanger life or cause serious harm (section 22A), and

The new offences would align with the general schema of the
Act. Sections 22A and 23A are aggravated offences and would
carry maximum penalties of 14 years. The new section 20A is a
lower penalty offence (the aggravated offence is at section 21) and
would carry a maximum penalty of 10 years.

Schedule 2 of
the Bill relates to airport policing and contains a number of
proposed amendments to the COPAL Act and the AFP Act.

On 18 December 2009, the Minister for Home Affairs announced
changes to policing arrangements at Australia’s eleven major
airports. The Minister’s release included the following
information:

Minister for Home Affairs, Brendan O’Connor, today announced
significant administrative reforms to the Australian Federal Police
(AFP) as part of the government’s response to the Federal
Audit of Police Capabilities.

Conducted by Mr Roger Beale AO, the audit examined the AFP’s
capacity to meet contemporary and future demands and government
priorities.

“In line with our election promise, the Australian Government
is improving policing capability to respond to current and future
law enforcement challenges,” Mr O’Connor
said.

Major areas for reform include:

·
…improved arrangements for policing at Australia’s
eleven major airports.

…Under the proposals released today, the Australian
Government will also move to enhance AFP policing at
Australia’s 11 major airports in consultation with States and
Territories, airports and aviation bodies and unions.

The changes proposed include a staged move to a fully sworn AFP
capability at these airports instead of the current mixed
Commonwealth/State policing model.

This new model of airport security will be implemented over a 5
year period in close cooperation with State and Territory
governments and their agencies, with adequate time to up-skill
current staff who are not yet sworn police officers.

This new framework will provide a nationally-integrated airport
policing service and a continued counter-terrorism first-response
capability at those airports.

According to Minister O’Connor, while many of the
recommendations of the Beale Audit relate to internal operations of
the AFP, some recommendations, such as those regarding policing at
major airports, will be of particular interest to the States and
Territories. “The Australian Government is committed to
working with the states and territories, airports and aviation
bodies, and unions to ensure there is support for the
implementation of the Beale recommendations,” he
said.…

The proposed amendments in Schedule 2 support the changes to the
AFP’s airport policing role.

The COPAL Act and AFP Act amendments are designed to rectify
anomalies that currently exist in both pieces of legislation which
relate to the policing capabilities of the AFP. In summary,
the amendments in Schedule 2 are to:

·
overcome a technical anomaly in the COPAL Act that renders standard
AFP arrest and search powers unavailable to the AFP when dealing
with State offences that are applied as Commonwealth law in
airports that are Commonwealth places, and

·
remove doubt as to the legal basis for State and Territory police
to swear in AFP members or special members as members or special
constables of State and Territory police, and as members of police
forces or other law enforcement agencies of foreign countries
- an existing practice that has maximised interoperability in
airports and elsewhere.

Financial impact statement

The amendments in this Bill will have no financial
impact.

NOTES ON CLAUSES

Clause 1 - Short Title

1.
This is a formal provision specifying the short title of the
Bill.

Clause 2 - Commencement

2.
Sections 1 to 3 of the Bill are to commence on the day it receives
Royal Assent.

3.
Schedules 1 and 2 of the Bill are to commence 28 days after it
receives Royal Assent. This ensures that all of those
affected by the amendments, including policing authorities,
airports and airlines, have a period of time between the enactment
of the amendments and their commencement. In particular, this
will ensure that the Australian Federal Police can have all
required procedures and protocols with State and Northern Territory
police in place when the new provisions take effect.

Clause 3 - Schedules

4.
This is a formal clause that enables the Schedules to amend Acts by
including amendments under the title of the relevant
Act.

6.
Currently the definition of ‘Commonwealth aerodrome’
under section 3 is: ‘an area or land or water in
Australia that is owned by the Commonwealth and used, or intended
for use, either wholly or partly, for, or in connection with, the
arrival, departure or other movement of aircraft; or a Federal
airport; and includes any building, structure, installation or
equipment in that area, or on the land that forms the Federal
airport, that is provided for use in connection with the operation
of that area or land as an aerodrome or Federal airport, as the
case may be’.

7.
This definition applies to the offences in section 27 (endangering
the safety of aerodromes etc) and section 28 (threats and false
statements) of the Act.

8.
Under section 3, ‘Federal airport’ is given the same
meaning as it has within the meaning of the Federal Airports
Corporation Act 1986 . However, that Act was repealed in
2002. Accordingly, the term ‘Federal airport’
needs to be replaced.

10.
The Commonwealth has no general legislative power with respect to
airports under the Constitution. It can only legislate with
respect to airports in certain circumstances, including where its
legislative power with respect to ‘Commonwealth places’
and ‘Territories’ is applicable. The definition
has been framed to apply the relevant Crimes (Aviation) Act
offences (in sections 27 and 28) to significant airports for which
there is clear constitutional power for these offences to apply,
principally because the airports are Commonwealth places or in a
territory.

11.
Item 3 repeals the definition of ‘Federal airport’ as
it is no longer used in the Act.

12.
Item 4 inserts into the Act a definition of ‘serious
harm’. The definition is given the same meaning as
‘serious harm’ under the Criminal Code. That
definition, found in the Dictionary of the Criminal Code, is as
follows: serious harm means harm (including the cumulative
effect of any harm) that endangers, or is likely to endanger a
person’s life; or that is or is likely to be significant and
longstanding.

13.
The phrase ‘serious harm’ is used as an element in the
proposed offences in sections 22A and 23A of the Crimes (Aviation)
Act, to confine those offences to more serious cases that merit the
maximum penalty of 14 years imprisonment proposed for those
offences.

Item 5 - Taking control of aircraft (revised maximum
penalty)

14.
Item 5 amends the maximum penalty for the offence of taking or
exercising control of a Division 3 aircraft under subsection
16(1). The maximum penalty will be increased from 7 years to
10 years imprisonment. This offence is a form of theft and
will align the applicable penalty with penalties for similar
offences in the Commonwealth Criminal Code, such as theft of
Commonwealth property (section 131.1) and in State and Territory
legislation, such as theft (section 308 of the Criminal Code
(ACT), section 134 of the Criminal Law Consolidation Act
(SA), and section 74 of the Crimes Act 1958 (Vic)), all of
which carry a maximum penalty of 10 years imprisonment.

15.
A Division 3 aircraft is defined in section 3 as:

(a)
an Australian aircraft (other than a Commonwealth or defence
aircraft) that is mainly used for any of the following flights, or
is engaged, or intended or likely to be engaged in such a
flight: (i) a prescribed flight (as defined); (ii) a
flight between a part of Australia and a place outside Australia;
(iii) a flight wholly outside Australia; or

(b)
a Commonwealth aircraft; or

(c)
a defence aircraft; or

(d)
a foreign aircraft that is in Australia; or

(e)
a foreign aircraft that is outside Australia while engaged in a
flight that started in Australia or that was, when the flight
was started, intended to end in Australia.

16.
Item 6 amends the maximum penalty for the offence of intentionally
prejudicing the safe operation of an aircraft under subsection
19(1). The maximum penalty will be increased from 14 years to
20 years imprisonment. While 20 years is a severe penalty,
the increase takes into account the seriousness of the offence, as
well as the potentially severe consequence of the offence on the
safety of groups of people.

Item 7 - Assaulting crew - general (new
offence)

17.
Item 7 inserts a new section 20A into the Act. The section
creates a new general offence of assaulting an aircraft crew
member. The maximum penalty for this offence would be 10
years imprisonment.

18.
The Act provides for an offence relating to assaulting, threatening
or intimidating a crew member of an aircraft but this offence also
requires proof that the defendant’s conduct impeded a crew
member’s ability to perform their function or duties.
The assault of a crew member is a serious matter and liability for
such an assault should not depend on the impact the assault has on
the crew member’s ability to perform his or her duties,
particularly as this additional requirement has been difficult to
prove in some cases. The inclusion of a new general offence
akin to a ‘common assault’ with a 10 year maximum
penalty is appropriate. An aggravated assault which also
interferes with a crew member’s ability to perform his or her
functions or duties will be captured by the existing offence in
section 21 which will now carry a maximum penalty of 20 years
imprisonment.

19.
The element of the offence, that ‘the aircraft is a Division
3 aircraft’, is a jurisdictional element and it is a standard
practice in Commonwealth law to apply strict or absolute liability
to such elements. It would not be reasonable or appropriate
if a person could only be convicted of an offence if they knew they
were on a Division 3 aircraft - their culpability comes from
the substantive elements of the offence eg threat of violence,
assault or intimidation. This is consistent with the
Commonwealth criminal law policy, which is discussed on pages 24-25
of the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers .

20.
The application of absolute liability to the jurisdictional element
(Division 3 aircraft) is also consistent with the existing section
21 of the Act.

21.
The provision has been drafted to fit in with the general structure
of the Act, which has a lower penalty offence relating to the act
followed by an aggravated, higher penalty offence, which for this
offence is section 21.

22.
Item 8 amends the maximum penalty for the offence of assaulting,
threatening or intimidating a crew member onboard an aircraft
interfering with his/her ability to perform function or duties
under subsection 21(1). The maximum penalty has been
increased from 14 years to 20 years imprisonment. The
increase to the maximum penalty ensures consistency between the
Crimes (Aviation) Act and similar offences under the Criminal Code
such as the offence of intentionally causing harm to an Australian
citizen (section 115.3) which carry a maximum penalty of 20
years.

24.
Item 10 amends the maximum penalty for the offence of recklessly
endangering the safety of an aircraft under subsection 22(1).
The maximum penalty will be increased from 7 years to 10 years
imprisonment. This offence is a more general offence and
would fall within the fourth tier of penalties in this Act.
Increasing the maximum penalty for this offence to 10 years makes
the penalty level consistent with the penalty level that applies
for other offences within this tier, and reflects the seriousness
of any act endangering the safety of an aircraft even if not in
flight.

25.
Item 11 inserts a new section 22A into the Act. The section
creates a new offence of recklessly endangering the safety of an
aircraft likely to endanger life or cause harm to an
individual. The maximum penalty for this offence would be 14
years imprisonment.

26.
The offence detailed in section 22A is an aggravated offence
provision following on from the lower penalty offence of
endangering the safety of an aircraft (section 22). It deals
with more serious actions where the act in question carries the
potential or risk of causing serious harm or endangering
life. The higher penalty level takes this into
account.

27.
This item also provides for alternative verdicts for offences
against this subsection. A person may be found not guilty
under subsection 22A(1) but may still be found guilty under section
22 in certain circumstances.

Item 12 - Dangerous goods (revised maximum penalty)

28.
Item 12 repeals and replaces section 23(1)(a), amending the maximum
penalty for the offence of carrying or placing dangerous goods
onboard an aircraft. The maximum penalty for this offence
will be increased from 7 years, or a $100,000 fine for a body
corporate, to 10 years imprisonment. The default maximum fine
that would apply to this offence under the Crimes Act would be 600
penalty units ($66,000).

29.
The increase to the maximum penalty will make the applicable
penalty for this offence consistent with similar offences under the
Criminal Code, such as causing an explosive or dangerous or harmful
substance to be carried by post (section 471.13) or causing a
dangerous article giving rise to the danger of death or serious
harm to be carried by post or similar service (section 471.15),
which carry maximum penalties of 10 years
imprisonment.

30.
Item 13 inserts a new section 23A into the Act. The section
creates a new offence of direct or indirect possession or placing
of dangerous goods onboard an aircraft giving rise to death or
serious harm to an individual. The maximum penalty that would
apply for this offence is 14 years imprisonment.

31.
The offence in section 23A is an aggravated offence provision
following on from the lower penalty offence of carrying or placing
of dangerous goods onboard an aircraft (section 23). The
actions specified are more serious and where the consequences or
risk of causing serious harm or endangering life is high. The
higher penalty level takes this into account.

32.
This item also provides for alternative verdicts for offences
against this subsection. A person may be found not guilty
under subsection 23A(1) but may still be found guilty under section
23(1) in certain circumstances.

33.
Items 14 and 15 amend the maximum penalties for hoax and threat
offences under subsections 24(1) and (2). The maximum
penalties for these offences will be increased from 2 years to 10
years imprisonment. The default maximum fine that would apply
to this offence under the Crimes Act would be 600 penalty units
($66,000).

34.
Currently, the maximum penalty of 2 years is significantly lower
that the penalty for similar hoax offences contained in other
Commonwealth legislation. For example, in the Criminal Code
hoaxes about explosives or dangerous substances that are made by
phone or email (section 471.10) or false statements made about the
contamination of goods (section 380.4) carry maximum penalties of
10 years. Similarly, under the Crimes Act 1900 (ACT),
the offence of making false statements about goods (section 138) or
false statements made with the intent of causing public alarm
(section 139) both carry 10 year maximum
penalties.

35.
These amendments will bring about greater consistency as well as be
more appropriate given the serious nature of the
offences.

Items 16 and 17 - Endangering the safety of an aircraft in
flight or of an air navigation facility by an Australian Citizen
(revised maximum penalty)

36.
Item 16 amends the maximum penalty for the offence of endangering
an aircraft in flight in Australian territory or by an Australian
citizen under subsection 25(1). The maximum penalty has been
increased from 14 years to 20 years imprisonment.

37.
Item 17 amends the maximum penalty for the offence of endangering
the safety of an aircraft in flight, or endangering an air
navigation facility so as to affect the safety of an aircraft in
flight under section 25(2). The maximum penalty has been
increased from 7 years to 20 years imprisonment.

38.
In both cases, the consequence of the offence on the safety of
large groups of people is severe, and the potential risk of death
or serious harm is high. The proposed increase in the penalty
is designed to take this into account.

39.
Item 18 amends the maximum penalty for the offence of using a
substance or thing to commit an act of violence at a prescribed
airport, where the act causes or is likely to cause injury or death
and endanger the safe operation of the airport under subsection
26(1). The maximum penalty has been increased from 15 years
to 20 years imprisonment.

40.
This offence is a serious one, carrying a high potential for danger
or harm to large groups of people. It would therefore fall
within the second tier of penalties in this Act. Increasing
the maximum penalty for this offence to 20 years makes the penalty
level consistent with the penalty level that applies for other
offences within this tier.

41.
Item 19 amends the maximum penalty for the offence of destroying or
disrupting facilities or services of a prescribed airport, or
destroying or seriously damaging any aircraft at a prescribed
airport so as to endanger life or the safe operation of the airport
under subsection 26(2). The maximum penalty has been
increased from 10 years to 14 years imprisonment.

42.
This offence falls within the third tier of the penalties in this
Act as it is an offence that involves actions involving or against
aircraft and aviation environments. The types of actions
covered by this offence are serious and carry the risk of causing
danger or harm to individuals. Increasing the applicable
penalty to 14 years makes it consistent with the penalty level that
applies for other offences within this tier.

43.
Item 20 amends the maximum penalty for the offence of endangering
the safety of a Commonwealth aerodrome or air navigation facility
or those within its limits under subsection 27(1). The
maximum penalty has been increased from 7 years to 14 years
imprisonment.

44.
The increase to the maximum penalty ensures consistency between
this offence and other comparatively serious offences within this
Act, such as the offence of intentionally prejudicing the safe
operation of aircraft (section 19), which carry the more severe
penalty of 14 years.

45.
Item 21 amends the maximum penalty for the offence of threatening
to damage a Commonwealth aerodrome or air navigation facility or
harm those within under subsection 28(1). Item 22 amends the
maximum penalty for the offence of making a false statement about
taking control or endangering the safety of a Commonwealth
aerodrome or air navigation facility or harming persons within
under subsection 28(2). The maximum penalties for both
offences have been increased from 2 years to 10 years
imprisonment.

46.
Currently, the maximum penalty of 2 years is significantly lower
that the penalty for similar offences contained in other
Commonwealth legislation. For example, in the Criminal Code
hoaxes about explosives or dangerous substances (section 471.10) or
using a carriage service to make a threat to kill (section 474.15)
carry maximum penalties of 10 years. Similarly, under the
Crimes Act 1900 (ACT) the offence of threatening to act with the
intent to cause public harm (section 140B) carries a 10 year
maximum penalty.

47.
These amendments will bring about greater consistency as well as be
more appropriate given the serious nature of the
offences.

Item 23 - Application

48.
Item 23 determinates the way that the amendments made by items 7,
9, 11 and 13 apply. The provision provides that these
particular amendments will apply to relevant acts or omissions that
happen either at the commencement or after the commencement of this
item.

Schedule 2 - Policing at airports (amendments to the
Australian Federal Police Act 1979 and the Commonwealth
Places (Application of Laws) Act 1970)

Australian Federal Police Act 1970

Item 1 - Appointment of members to other Police
Forces

49.
This item inserts a new section into the Act which explicitly
allows AFP members and special members to be appointed as members
or special constables to State, Territory and police forces and
other law enforcement agencies of foreign countries. While
this is an existing practice for the AFP especially for the purpose
of joint operations, there were no provisions in the Act that
provided any formal legal basis for doing so. The addition of
this section clarifies the legal basis for this to
occur.

50.
The amendments will not compel State and Territory police forces to
appoint AFP members and special members as members or special
constables. It will remain within the discretion of the
States and Territories as to whether they make these
appointments.

51.
Item 2 inserts a definition of ‘airport’. Airport
is defined as having the same meaning as in the Aviation
Transport Security Act 2004 , which is ‘an area of land or
water (including any buildings, installations or equipment situated
in the area) intended for use either wholly or partly in connection
with the arrival, departure or movement of aircraft. It also
includes any area controlled by the airport operator that is
contiguous with such an area of land or water’.

52.
Item 3 inserts a definition of ‘designated State
airport’. A designated State airport is a Commonwealth
place airport that is situated in a State or States and has been
prescribed by regulations for the purposes of this
definition. In the COPAL Act, a designated airport will be
any one of the following airports: Adelaide Airport, Brisbane
Airport, Coolangatta (Gold Coast) Airport, Hobart Airport,
Melbourne (Tullamarine) Airport, Perth Airport and Sydney
(Kingsford-Smith) Airport.

53.
Item 4 inserts a definition of ‘member of the Australian
Federal Police’. The definition is given the same
meaning as in the AFP Act.

54.
Item 5 inserts a definition for ‘relevant Crimes Act
provision’ into the Act. This item specifies particular
provisions of the Crimes Act which relate to the powers available
to the AFP when conducting the investigation of offences. The
current operation of the COPAL Act renders these powers unavailable
to the AFP when they deal with offences in airports that are
Commonwealth places. The provisions of the Crimes Act that
may now apply are
Part IAA (dealing with search, information gathering, arrest and
related powers), section 9 (which provides for the seizure and
condemnation of forfeitable goods), section 13 (allowing the
institution of proceedings in respect of offences), section 15
(dealing with the discharge of defendants) and Part ID (dealing
with forensic procedures).

55.
Item 6 inserts a definition of ‘special member’.
The definition of ‘special member’ is given the same
meaning as in the AFP Act.

56.
Item 7 amends section 5 of the COPAL Act to add a new subsection
3A.

57.
Currently, the operation of section 5(3) means that, if there is an
arrangement in place under section 6(2) of the COPAL Act, those
provisions set out in the Schedule of the Act will not apply to
matters that arise under the applied provisions of section 4 in or
in relation to a Commonwealth Place in a State. In terms of
airport policing, this has the effect of the AFP lacking the
appropriate range of powers to conduct investigations for applied
State offences committed at Commonwealth place airports.

58.
The addition of subsection 3A will overcome this anomaly and
provides that the Crimes Act provisions specified in the
definitions (see Item 5 above) can be applied by the AFP or a
special member of the AFP in designated State airports that are
Commonwealth places.

Item 8 - Application

59.
Item 8 is an application provision and determinates the way that
Item 5 (above) applies. The provision allows the AFP to be
able to commence investigations for offences committed or suspected
of having been committed before, on or after the commencement date
of the provision, rather than only for offences that occur after
the commencement date.